Photographic reproductions of out-of-term artistic works: slavishly original?

An ongoing dispute between the UK National Portrait Gallery (‘NPG’) and a US-based Wikipedia uploader raises the issue of whether photographs of out-of-term artistic works should attract copyright. 

On 10 July 2009, the NPG issued a cease and desist letter to the relevant user alleging that they had infringed its copyright under the Copyright, Designs and Patents Act 1988 (UK) in over 3,300 high-resolution photographs of out-of-term artistic works hosted on its website.  The user, who resides in the US, downloaded the images and then uploaded them to the Wikipedia website (which does not have servers in the UK).

Such photographs do not receive protection under US copyright law, following the decision of the Second Circuit in Bridgeman Art Library v Corel Corp (1999) 50 USPQ 2d (BNA) 1110.  Thus aside from the obvious jurisdictional issues regarding whether this alleged infringement actually occurred in the UK, a more fundamental matter is at play here: whether such photographs should receive protection under UK law.

The orthodox position is that they do, given the extremely low originality threshold for photographs in the UK (and Australian) copyright tradition.  Some degree of time, skill and labour is said to be involved in producing an accurate depiction as possible – judgment must be exercised regarding such matters as the angle from which the photograph is taken, lighting, film speed and filter use.

However it is difficult to see why such admittedly slavish copying should give rise to copyright.  If an artist were to paint a faithful copy of an existing work, nobody would contend that the artist’s copy would be original, no matter how skilfully it was rendered.  Why then should the skilful photographer receive different treatment?

Indeed, if copyright subsists in faithful photographic reproductions, this may give rise to perverse situations where the duration of copyright protection of the underlying artistic work is in substance artificially extended.  For example, if an out-of-term artistic work is destroyed or irreparably damaged and a faithful photographic reproduction is the only remaining record.

As a matter of policy, where copyright in a work has expired, it should be available for use by society at large. In fact, the US position has seemingly resulted in a greater public re-use of out-of-term artistic works.  Even though galleries and museums may lose licensing revenue streams in respect of images of out-of-term artistic works if the UK (and Australian) position is brought into line with the US position, this is entirely consistent with the rationale of copyright.

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